September 21, 2006

Submitted by Colin SickIt wasn't much of a last meal. A focused and determined Josh Wolf and I shared some cheap fish and Japanese beer at a restaurant popular with broke NYU students near Washington Square Park Monday night. In town for a meeting with the newest member of his legal team, the First Amendment giant Martin Garbus, the embattled videoblogger was in a surprisingly constrained mood considering the circumstances.

It barely seemed to register that he was just interviewed by a woman most male bloggers his age (24) would give their right arm to be within 10 yards of, Amanda Congdon. The vlog goddess had just dropped him off in a shiny new hybrid SUV Ford is supplying her to drive across the country and videoblog along the way.

The two most famous videobloggers couldn't be facing more different fates.

Just hours earlier Wolf had received word that the U.S. government wanted him back in prison, in 48 hours, 2,700 miles away. Barring a successful request by his lawyers to postpone his inevitable return to the slammer until Friday to allow him to take care of some personal affairs, the increasingly high-profile First Amendment martyr will be back in a federal detention center in California's central valley by 1:00 PST Wednesday.

Wolf was wearing a white stripped shirt and a pinstriped blazer while lugging a 60 lb. backpack that could very easily be more than half his weight. Small with dark, matted hair and Elvis Costello glasses, he appeared to straddle the respectable journalist he must present to the world and the anarchist in his heart.

"The government is bending my elbow back and trying to make me cry uncle," he said defiantly. He doesn't say whether he will give. He doesn't have to.

Wolf's Kafka-esque journey through the federal grand jury system is a legal maze. But the case is fairly simple: The feds want him to turn over raw footage he shot a protest, and he has refused. On July 8th 2005, an anti-corporate globalization protest devolved into chaos in San Francisco's Mission District. A cop was severely injured in the fracas and someone allegedly attempted to set an SFPD car alight - the damage to the squad car was reportedly limited to a busted taillight. Wolf videotaped portions of the protest and sold his footage to KRON, an independent local station that has been experimenting with "citizen journalism." The government claims he may have evidence relevant to their case on his tape. Wolf says he doesn't. If you think this all sounds like a local issue, one that could be settled by say, the local district attorney and local courts, and, dare I say it, a jury of one's peers. Think again. In Bush's America, the "war on terror" has come to your hood. The absurd legal rationale at work here - you might not want to be drinking milk when you read this - is because SFPD gets Homeland Security cash, the case belongs in federal court. Why did the government want him in federal court? Because California, like 16 others states plus Washington DC, has a journalist shield law which allows reporters to protect their sources (and raw materials like interview transcripts and videotapes) from the prying eyes of the Man.

In federal court, the newsperson's privilege is in deep distress. Reporters have long argued, based on a 1972 case named Branzburg v. Hayes that produced no clear majority opinion, that there is at least a qualified common law reporters' privilege requiring a court to weigh the incursion into press freedom against the importance of what could be accomplished by requiring testimony before the court can compel evidence from a reporter.

The Judy Miller case did harm to this balancing theory, although in truth, only one of the three Court of Appeal judges ruled out the existence of such a common law privilege. A second judge wanted to duck the issue because the prosecutor had convinced her that any such privilege had been overcome, while the third would have found that Miller would have been entitled to protection, "were the leak at issue either less harmful or more newsworthy."

In Wolf's case, the court required him to make the difficult showing that the investigation was undertaken in bad faith and then held that he had not done so. This is a far cry from balancing the importance of the evidence against the harm being done to the role of the press.

The fact is that the effectiveness of the press is substantially diminished if every reporter is turned into a "surveillance camera" as Wolf has claimed. Perhaps with exceptions for genuinely "terrible" situations, the press cannot function if each crime related story could turn into days of court testimony. The law in California that all involved on the government side have chosen to flout is designed to protect this press function.

Wolf refused to comply with the government's subpoena, and was found in civil contempt. Like Miller, he was taken into federal custody (two other SF journalists face a similar fate. On August 1, Wolf surrendered himself to a federal detention center in Dublin, California. He faced nearly a year behind bars, at which point the current grand jury would expire. At that point, the government could extend the grand jury or ask for a new one.

Wolf calls his stint his "first embedded assignment." He describes the facility as a "Stalinist uptopia" with only a hint of irony. His fellow prisoners - mostly nonviolent drug dealers, bank robbers, illegals - treated him well. The prisoners are kept in line with a powerful threat. Next door is Alameda County's notorious Santa Rita Jail, where Oakland's gangbangers do their sabbaticals. The jail also holds a limited number of federal prisoners. Cause a problem in the fed, and you end up in Santa Rita.

Wolf struck up a strange long distance friendship with former New York Times reporter Judith Miller, who showed up at the prison to offer her support the day he went in. She spent 85 days in jail last year for refusing to testify in a federal investigation of the Plame Affair. Wolf asked her to send him some books, V for Vendetta, Tom Paine's Common Sense and Fight Club. The prison denied them. But he was able to get a hold of Malcolm X's autobiography in the library.

Thirty days into his stay, a three judge panel on the Ninth Circuit Court of Appeals ruled that he should be granted bail because his appeals were judged not to be frivolous or for the purpose of delay. But on 11 September, another panel of judges upheld the lower court's decision to hold him in contempt. Two days later, federal prosecutors filed a motion for his bail to be revoked and Wolf to be returned to prison. On Monday, the same three-judge panel approved the motion.

Ironically, Wolf, who has been quoted as calling himself a "student of anarchist philosophies" has received an abundance of support from the mainstream media. The straight-laced Society of Professional Journalists donated $30,000 to his legal defense and have nominated him for Journalist of the Year.

For all the accolades, it should be noted, Wolf's oeuvre as a journalist, radical or not, is thin. For the most part, his work has comprised of online rants and what I call "protest porn" - contextless video of radical protests. I turned down making one of his videos a feature on GNN once. It showed a rowdy protest of military recruiting at SF State, but offered no explanations of the arguments for or against.

Despite his limited output, he is no slacker when it comes to getting attention. When Al Gore's Current TV rolled into town in 2004, Wolf enthusiastically sent in an audition tape. It quickly rose the ranks of the user-voted web site. But when he got their contract, he was pissed. He credits himself with getting the network to change their "one year exclusive" clause to a 30-day deal. The final straw, he claims, was when Current ripped off the tagline and theme song (Spearhead's "Rock the Nation") he used for an anti-corporate media demonstration for a marketing campaign for one of the numerous launch parties the channel threw in SF. Mad as hell and not taking it anymore, Wolf launched his own video blog with the none-too-original header The Revolution Will Be Televised and declared himself the leader of a new fledgling network of media guerrillas called the Rise Up Network. So far, the group has failed to make a splash. But with videoblogging at the bleeding edge of the new content explosion on the web, the group of hungry young mediamakers is well-positioned, to say the least. When he gets out, he plans to use his position as a programmer at Oakland's Peralta community college to launch the revolution. If it not this kid, who? GNN has pledged our support.

The restaurant was shutting down and Wolf had to fly out in the AM, so we said our goodbyes. We got so deep into a long conversation about GNN and his own network that I forgot to ask some basic questions. What, if anything, is he hiding on that tape? Is he protecting someone? Forget the feds, why not show the public the tape, doesn't he have an obligation? So I called him on his cell. He was already back in SF after taking an early morning flight.

What is on the tape and why don't you show it to the public? I asked. At this point whatever is on there is obviously newsworthy.

He responded, "Because I can't show it to the public, and exercise the right to protect the precedent."

Wolf claims that he "neither witnessed nor filmed evidence of the crime being investigated nor did I shoot the incident or the alleged assault," adding "which I say not because not because I don't think it was assault but because it hasn't been tried in court."

The footage, Wolf claims, shows no one committing a crime, or what might be a crime. He does imply, though, that the tape could, in theory, show the faces of individuals that the police are after, either as witnesses or suspects.

Wolf insists that this is a clearly a local issue, and there is no other reason for the case to be in the hands of a federal prosecutor if it was anything other than an attempt to chill free speech coming from down high.

It's hard not to see it that way.

Further blostering his credibility, Wolf claims he has offered to screen the tape in chambers to the judge - and if the judge got the prosecutor (and the grand jury) off his back, he'd release it to the public. But as it stands now, "the government is circumventing state protections afforded to me under the California shield law that should be a local matter." He noted the San Francisco City Council passed a resolution in his support. Of course, the SF City Council has also passed resolutions to impeach George Bush and to recognize the impending "peak oil" crisis.

Not everyone is so enamored with the radical wunderkind. On YouTube an anonymous reposter of his original footage added this note:

at the end of a day of extremist protest in san francisco against an international economic conference held in another city in another country on another continent, an incident occurred in which an arson was allegedly attempted against a police vehicle. it is also said that two officers were injured in relation to the incident.

josh wolf, who was both documenting and participating in the events, is reasonably suspected of having captured the attempted arson on video. this suspicion is based on footage that he selected and provided for local television network mainstream news affiliates.

a subpoena has been issued for the remaining footage, with which wolf has refused to comply. he is now in confinement, set up with an nlg attorney, and attempting to present himself as a martyr for press freedoms. his defense is to claim journalistic privlege over what is in fact video of a public event captured by someone with a blogspot account.

here's what precident would be set if josh's defense is successfull: any witness close to any defendant can defy any subpoena by claiming the satus of "journalist" by virtue of having posted about it on the internet. the ability to investigate and prosecute crimes would be wounded in the course of this ego trip..

wolf's role in this more clearly resembles obstrucion of justice and accessory to - i suppose you could call it skateboard hooliganism - than anything related to press freedoms or "social justice".

his controll over the image, as distinct from the reality, of that event is what josh wolf and his legal council are bumming change for.